from the lying-liars dept

So we already had the story about AT&T's FUD claiming that all sorts of horrible things would happen if the FCC went with Title II reclassification, and now Comcast and the other cable companies are ramping up the FUD efforts. They have a "friendly" Congress person, Rep. Gene Green, passing around a letter to his colleagues, which claims that:

In the years that broadband service has been subjected to relatively little regulation, investment and deployment have flourished and broadband competition has increased, all to the benefit of consumers and the American economy.

And it hints that such investment would somehow go away with reclassification. Of course, this is all a lie. In part, because Wall Street hates capital expenditure and gets angry any time broadband providers actually invest in broadband, these companies have actually been doing everything possible to decrease how much they spend on infrastructure investment over the past five years. Even worse, they're playing stupid statistical tricks to try to hide it. Thankfully, Matthew Yglesias, over at Vox.com calls them out on this. The big cable lobbying organization, NCTA, pulls two tricks with the following chart that it uses to falsely pretend that broadband investment is increasing:

First, the more obvious trick is that those numbers are cumulative -- which is what you generally do when you want to hide the actual rate of investment per year. But the rate is actually slowing down quite a bit. The second trick is more subtle. Note that there are three years between each of the first four numbers? But between the second to last one and the last one, there are four years. That's because the actual numbers would show pretty clear decline in investment, so they're fudging it by combining cumulative totals and then adding an extra year to that last number. Yglesias then used that data to calculate the actual averages showing a more accurate picture:

As you can see, it certainly suggests that, as they've grown more powerful, and as real competition has decreased, investment has been cut back significantly. That fits with plenty of other evidence concerning how the major cable and telco companies have acted. That story about "greater competition" is -- as we've discussed previously -- a complete joke. That's fudging statistics in a different way, lumping in totally non-competitive wireless accounts, which can't be used as broadband replacements.

Update: NCTA has responded to Yglesias's article, claiming that "the [original] chart had a few simple errors" which it claims to have now fixed. It also posted a new chart with yearly data, which still appear to show a decline from peak investment, though NCTA tries to spin at as continued growth in investment. It does appear that there are cycles, but investment has clearly declined. In fact, this new chart appears to confirm Yglesias' point, that capital expenditure hasn't grown massively as NCTA suggested (and that's because... it hasn't).

Oh, and Comcast's now even got the gall to argue that allowing it to merge with Time Warner Cable will mean more net neutrality protection and a "faster internet." It's putting those claims in big newspaper advertisements

Of course, they're being misleading. It's what they do. They're defining "net neutrality" very narrowly, based on the merger terms that were forced upon it when it bought NBC Universal. But that's got little to do with the actual net neutrality issues of today. As for a "faster internet" they mean, yeah, sure, if internet companies agree to pay extra (meaning you'll pay extra too).

I'm not exactly sure what the cable companies think they accomplish with these kinds of easily debunked claims, but it really makes them look excessively desperate.

from the troll-troll-troll dept

It would appear that Intellectual Ventures' grand plans to tax innovators has hit a bit of a roadblock: the company appears to be running out of cash. Reuters has the news that the company has basically stopped buying new patents and has even had to push back the closing date on a bunch of deals it was trying to complete while it scrounges for cash. The world's largest patent troll is seeking $3 billion in new investment money, to add to the $6 billion it already raised (and spent). The company also claims to have made $3 billion in license fees (what some might call shakedown fees). Of course, the numbers may be a little mixed up, since some of the massive licensing deals (sometimes over $100 million) often were described as "investments." That is, companies would be told if they paid massive sums to "invest" they'd effectively get a license.

Of course, the Reuters article also highlights how many of the big tech companies who signed up early on are not at all interested in supporting IV any more. As we noted years ago, Nathan Myhrvold built IV with a sort of bait-and-switch pitch. He told everyone that he was building a "patent defense fund," which tech companies could share to avoid getting sued by others. It was only later that the companies realized they were enabling a new massive patent troll instead. And it seems that many are not happy.

It is not clear how close IV is to completing its new fund, or which type of investors might participate. Microsoft Corp, an early IV backer, has not invested in IV's new fund "at this time," spokeswoman Jennifer Crider said.

Google Inc, an early investor that in recent years has found itself opposed to IV in the patent policy debate, also said it will not participate.

"We joined Intellectual Ventures' first fund as a way to defend ourselves against unjustified patent claims," Google spokesman Matt Kallman said. "Once we came to understand IV's operating model, we didn't join its later funds."

[....] One of IV's early tech company investors, the chip design firm Xilinx, sued IV in 2011 after Xilinx refused IV demands to license additional patents, according to court filings. Xilinx's attempt to invalidate those patents in court is still pending.

The Reuters report also highlights how it doesn't appear that IV's actual business looks very good either. While it claims at least some positive rate of return on some of its funds, numbers provided publicly by the University of Texas make it look pretty weak:

The IV investor presentation reviewed by Reuters shows that at the end of last year, the average rate of return for IV's 2003 fund was 16.2 percent, while the 2008 fund stood at 2.5 percent. In a court filing in August, Intellectual Ventures said it has earned more than $3 billion to date in licensing fees....

[...] UTIMCO [University of Texas Investment Management Company] invested $50 million in Intellectual Ventures' 2008 fund. By the end of May 2013, IV had returned 31 cents on the dollar to UTIMCO, which ranked it 22nd out of 38 on cash returns among all of UTIMCO's 2008 private investments. The value of UTIMCO's stake in IV declined more than 4 percent since 2008, putting it fifth from the bottom among UTIMCO's 2008 deals.

That said, as we pointed out a few years ago, looking at the return rates on investment funds before they're closed can often be misleading, since many are dependent on big homeruns that may occur late in the game. Still, IV has been around for a decade now, and despite all the hype and fuss, it's not at all clear that the company has a real business. Yes, billions went into it, but that has led to zero actual products, and not much return for investors.

The company still may be able to find that $3 billion -- a lot of big money folks who don't really understand the nature of trolling may be dazzled by the Nathan Myhrvold charm offensive and the silly stories he likes to tell -- but perhaps we can hope that people will finally start to realize that the emperor has no clothes. Patent trolling harms the wider economy, taking money away from actual innovation and products that improve lives, while handing it off to a bunch of lawyers for no good purpose at all.

from the exaggerations dept

One of the common "defenses" of patents that we often hear is that "investors require them." That's simply not true. There are, certainly, some short-sighted investors who require patents, but more and more of the most respected investors have spoken out against the patent system, acknowledging that it does more harm than good. The latest example of this comes from Rob Pegoraro, who spoke to a bunch of startups presenting at a "Demo Day" and asked each of them about their patent strategy.

While some of them are filing for their own patents, a key point was that their investors definitely didn't require it or push them in that direction.

None said their investors had pushed them to file for patents.

Even more to the point, investors seem to recognize that patents can take a big chunk of money out of early investment if startups file for a patent. Fortify Ventures managing director Jonathon Perrelli pointed out:

“When they’re raising $50,000 to pay for ramen and hosting services and their desks, $15,000 doesn’t have to go to intellectual property.”

The article also asked the startups if they were worried about patent trolls, and, unfortunately, many of the startups seemed fairly naive about the whole thing, suggesting that they're okay since they're not copying anything. That's not how patent law works, of course. Patent trolls pop out of the woodwork claiming you violate some tiny thing all the time. The one company that Pegoraro spoke to that insisted it was impossible that they violated a patent is likely in for a big surprise if it ever gets big enough to attract patent troll attention.

from the her-legacy-is-a-joke dept

Earlier this year, the JOBS Act passed Congress with widespread bipartisan support, and was signed into law by the President. There were a few different pieces involved, but one that got plenty of attention was the opening up of crowdfunding for equity (i.e., owning actual shares in a company). In the US, you can't do a crowdfunding campaign that results in giving ownership in the company. Until the JOBS Act passed, that was considered a form of a public offering, which is a highly regulated area, in which you have to file all sorts of documents with the SEC, get an underwriter, go on a road show, all that fun stuff. But for smaller businesses looking to raise some money, this doesn't make much sense. The JOBS Act opened up a small sliver of space in which smaller companies could raise a little bit of money in exchange for equity. The SEC actively opposed the whole thing from the beginning, but once the bill was law, it was also tasked with setting up the rules for how it would work to limit possible fraud.

Back in August, we noted that the SEC's rules were due out any day, but had been pushed back at least a week as various state regulators argued that the whole thing was just going to be used for massive scamming. Since then the whole process has been fought over and changed numerous times. Newly released emails suggest that it wasn't because the SEC was struggling with setting the best rules possible... but because SEC boss Mary Schapiro was worried about her legacy. She's leaving the position in two weeks and apparently didn't want to put in place strict rules for fear that it would tarnish her reputation as being "pro-investor."

"I don't want to be tagged with an anti-investor legacy," Schapiro wrote in an e-mail to [Corporation Finance Director Meredith] Cross with the subject line "Please don't forward."

"In light of all that's been accomplished, that wouldn't be fair, but it is what will be said ..."

Whether or not you think the rules are good or bad, we should have SEC commissioners who focus on doing what's right... now how things are going to look on their resume when they go hunting for a job in the industry after leaving public service.

from the damn-history dept

We've noted that among the proposals being pushed this week at the ITU's World Conference on International Telecommunications (WCIT) are a few that are solely designed to divert money from innovative internet companies to stodgy old telcos who haven't adapted. The ITU has defended such proposals as being about sharing revenue more fairly, which tends to be a warning sign for most folks that failed organizations are about to take money from successful ones. Indeed, a number of proposals have suggested a form of "sending party pays" infrastructure for peering, claiming that such a system was successful (via the ITU) for telco buildout, and so they could do the same thing for the internet. Of course, this leaves aside the vast differences in how the networks work and where they came from -- and how a "sending party pays" internet system would almost certainly lead to a balkanized and fragmented internet.

The possible extension of the telephone system’s “sender-pays” rule to the Internet is a contentious international political issue under consideration at the World Conference on International Telecommunication (WCIT). This paper examines whether higher international telephone rates support or impede telecom sector growth in the receiving country. It uses data on international telephone rates from the US from 1992-2010 to explain growth in foreign telecom sectors during the same period. I find that higher international calling rates are correlated with slower growth in the telecom sector, which suggests that countries are not primarily using higher charges to finance additional expansion. These findings cast doubt on proposals that would extend sender-pays to the Internet sector.

In other words, the key argument the ITU likes to make for this diversion of funds... isn't actually supported by the facts. Instead, it's what we expected: about helping big telcos (often either state-owned, or formerly stated owned with still close connections) get a bunch of money for nothing... which they then won't invest in expanding the network (why should they?). And, oh yes, the implementation of such a system might just also make it easier to limit internet access and/or spy on nearly everything people do (how else do you charge if you're not monitoring activity?).

from the it's-feeling-frosty-in-here dept

We've talked a few times about how attacks on new innovations in the name of protecting copyright can create massive chilling effects. For example, the increasingly questionable arguments against Megaupload have created a real chill for online cloud storage providers. That was likely manifest last week in the news that Dropbox was killing off its "public folders" feature in deference to its link feature, basically making the product less useful.

This new study, also by Harvard professor Josh Lerner, highlights the unfortunate opposite impact: the chilling effects on investment in innovation that comes as a result of anti-innovation judicial rulings. In this case, Lerner looked at specific rulings in the EU:

We analyze the effects of a court
ruling in France and several court rulings in Germany on VC investment in cloud computing
firms in these countries. These court rulings were seen as negatively affecting the development
of cloud computing, and our findings confirm this view by showing that these rulings regarding
the scope of copyrights had significant, negative impacts on investment. Specifically, we find
that VC investment in cloud computing firms declined in Germany and France, relative to the
rest of the EU, after the French and German rulings. Our results suggest that these rulings led to
an average reduction in VC investment in French and German cloud computing firms of $4.6 and
$2.8 million per quarter, respectively. This implies a total decrease in French and German VC
investment of $87 million over an approximately three year period. When paired with the
findings of the enhanced effects of VC investment relative to corporate investment, this may be
the equivalent of $269.7 million in traditional R&D investment.

Combine these two studies and you can see how these chilling effects can be quite massive in terms of investment in innovation. Of course, investment alone is not the sole determinant of the pace or success of innovation, but it is a key factor. And scaring investors away from innovations can have a major impact on the public and the economy.

from the let's-walk-through-the-reasons dept

There's been plenty of talk (and a ton of posts here on Techdirt) discussing both SOPA (originally E-PARASITE) and PROTECT IP (aka PIPA), but it seemed like it would be useful to create a single, "definitive" post to highlight why both of these bills are extremely problematic and won't do much (if anything) to deal with the issues they're supposed to deal with, but will have massive unintended consequences. I also think it's important to highlight how PIPA is almost as bad as SOPA. Tragically, because SOPA was so bad, some in the entertainment industry have seen it as an opportunity to present PIPA as a "compromise." It is not. Both bills have tremendous problems, and they start with the fact that neither bill will help deal with the actual issues being raised.

That main issue, we're told over and over again, is "piracy" and specifically "rogue" websites. And, let's be clear: infringement is a problem. But the question is what kind of problem is it? Much of the evidence suggests that it's not an enforcement problem and it's not a legal problem. Decades of evidence from around the globe all show the same thing: making copyright law or enforcement stricter does not work. It does not decrease infringement at all -- and, quite frequently, leads to more infringement. That's because the reason that there's infringement in the first place is that consumers are being under-served. Historically, infringement has never been about "free," but about indicating where the business models have not kept up with the technology.

Thus, the real issue is that this is a business model problem. As we've seen over and over and over again, those who embrace what the internet enables, have found themselves to be much better off than they were before. They're able to build up larger fanbases, and to rely on various new platforms and services to make more money.

And, as we've seen with near perfect consistency, the best way, by far, to decrease infringement is to offer awesome new services that are convenient and useful. This doesn't mean just offering any old service -- and it certainly doesn't mean trying to limit what users can do with those services. And, most importantly, it doesn't mean treating consumers like they were criminals and "pirates." It means constantly improving the consumer experience. When that consumer experience is great, then people switch in droves. You can, absolutely, compete with free, and many do so. If more were able to without restriction, infringement would decrease. If you look at the two largest contributors to holding back "piracy" lately, it's been Netflix and Spotify. Those two services alone have been orders of magnitude more successful in decreasing infringement than any new copyright law. Because they compete by being more convenient and a better experience than infringement.

Finally, even if you disagree with all of that, and believe that the problem is enforcement, SOPA and PIPA, won't be effective in dealing with that. The internet always has a way of routing around "damage" no matter how hard people try to stop it, and the approach put forth by these bills is a joke. It's hard to find anyone with technology skills who thinks that they will be effective. Every "blockade" has an easy path around it, and the supposed "anti-circumvention" rule in SOPA will never deal with the more obvious paths around things like DNS blocking (use a different DNS or a perfectly legal foreign VPN system). The private right of action efforts are also mistargeted. They're based on the premise that infringement is done for monetary reasons. It's amusing that just a few years ago, these same industries insisted that music and movie fans never wanted to pay anything any more, but now they're claiming that these same people are paying for cyberlockers all the time? That's simply not credible. And if there's so much money to be made, the studios and labels would be opening their own cyberlockers. Either way, we've watched this game of Whac-a-mole for over a decade. It doesn't work. Every site that is shut down leads to half a dozen new ones that spring up. This is not how you tackle a problem: by making the same mistake made over and over again in the past.

So... SOPA & PIPA don't attack the real problem, do nothing to build up the services that do solve the problem, and won't work from a technological standpoint. And that's just if we look at the what these bills are supposed to do.

The real fear is the massive collateral damage these bills will have to jobs, the economy and innovation.

The broad definitions in the bill create tremendous uncertainty for nearly every site online. This sounds like hyperbole, but it is not. Defenders of the bill like to claim that it is "narrowly focused" on foreign rogue infringing sites. Nothing could be further from the truth. While PIPA targets only foreign sites, the mechanism by which it does so is to put tremendous compliance and liability on third party service providers in the US. SOPA goes even further in expanding the private right of action to domestic sites as well. We've already seen how such laws can be abused by looking at how frequently false takedown claims are made under the existing DMCA. Of course, under the DMCA, just the content is blocked. Under SOPA all money to a site can be cut off. Under PIPA sites will just end up in court. Or, with both laws, an Attorney General can take action leading US companies to have to effectively act as network nannies trying to keep infringement from being accessible. None of this is good for anyone building a startup company these days. The massive uncertainty around this, combined with the need for a huge legal department sitting in "the garage" as a startup begins, will certainly slow down the pace of innovation in the US, while likely driving it elsewhere.

And the definitions are ridiculously broad. Under SOPA, you can be found "dedicated to the theft of US property" if the core functionality of your site "enables or facilitates" infringement. The core functionality of nearly every internet website that involves user generated content enables and facilitates infringement. The entire internet itself enables or facilitates infringement. Email enables or facilitates infringement. They have significant non-infringing uses as well, but the definition leaves that out entirely. Under SOPA, there's also a risk if you take "deliberate actions to avoid confirming a high probability" of infringement on a site. Of course, it's not at all clear how one takes deliberate actions to avoid taking action. The only way to read this clause from a tech company perspective is that it requires proactive monitoring, which is effectively impossible for a user generated content site. PROTECT IP's definitions are equally broad, again using the "enabling" or "facilitating" language.

The risk of these broad definitions on perfectly legitimate companies is not theoretical: Defenders of both bills continue to insist that they're only meant to deal with the worst of the worst. If that were really true, the definitions would be a lot tighter and a lot more specific. Even if this is the intention of the authors of both bills, the simple fact is that the very broad definitions in the bill, mean that any entrepreneur today will need to take significant compliance costs just to avoid the possible appearance of fitting the criteria.

Defenders also like to brush off the idea that a bill like this would target something like YouTube. But we know that's not accurate since Viacom is still engaged in a huge lawsuit against YouTube, in which Viacom's claims certainly appear to cover the definitions found in these bills. While it seems unlikely that anyone would try to shut down YouTube completely, given the public outcry it would create, the real fear is what happens to the next YouTube, or just the fear that a rights holder could strike into any company by threatening them under the private rights of action in each bill. It becomes a form of legalized extortion. Threaten to bring action under these bills, and watch tech companies crumble.

And, already there are indications that companies are interested in bringing broad actions for infringement against organizations that most people would consider perfectly legal. Advertising giant GroupM recently asked its entertainment industry customers to compile a list of "sites dedicated to infringement," not unlike what's found under PROTECT IP. Universal Music, Warner Bros. and Paramount were three key providers to that list, which ended up covering a large number of perfectly legitimate sites including the famed Internet Archive (widely recognized as the library for the internet). It also included numerous innovative startups that are frequently used by content creators to get their works out, such as SoundCloud and Vimeo. Even more worrisome, it included a variety of publications and blogs, including Vibe Magazine, the quintessential hip hop and R&B magazine founded by Quincy Jones, as well as Complex, a popular lifestyle magazine recently recognized as one of the most valuable startups in New York.

Even worse, it appears that Universal Music also included the personal website of one of its own top artists, 50Cent. The hiphop star has a personal website as well as a website owned by Universal Music. The personal website is much more popular... and it appeared on the infringement list. Suddenly, you can see how letting companies declare what sites are dedicated to infringement can lead to them looking to stifle speech and competition.

Similarly, Monster Cable, who has stated its support for PROTECT IP, has put together its own list of "rogue sites" and it, rather stunningly, includes sites like eBay, Craigslist, Costco and Sears. It even includes consumer rights groups like Which? in the UK, and various popular shopping search engines like PriceGrabber.

These companies clearly take an expansive view of what constitutes "dedicated to infringement," and have no problem suggesting they would like to stop these sites. Internet companies and site owners have every right to be extremely afraid of what laws like PIPA and SOPA would do when they give much more power to these private companies to take actions that could shut down these sites, tie them up in court or merely cut off their funding and advertising.

That uncertainty has very real and quantifiable effects on jobs in this country. President Obama has noted that the internet adds approximately $2 trillion to the annual GDP (pdf). The amount of jobs created by the tech industry are massive, and represent a large percentage of all new job creation today. IDC has predicted 7.1 million new jobs and 100,000 new businesses created in the next four years from the tech sector. An astounding 3.1 million people are employed thanks to internet advertising -- jobs that simply did not exist a decade ago.

And these jobs go way beyond just the jobs at tech companies themselves. The important thing in tech platforms is not in how many jobs are at those companies, but how many jobs they enable elsewhere. eBay has been said to have empowered 750,000 people to build their own small businesses. Facebook's app platform has, by itself, created somewhere around 200,000 new jobs (pdf). It's likely that Apple's iOS app platform has created significantly more than that, given how popular it is. Google's tools have been shown to create $64 billion (with a b) in additional economic activity.

Do we really want to stifle all of that growth and activity with regulations that will stifle innovation and jobs, even (as noted above) as the evidence shows that merely adapting and providing a better service makes everyone better off?

That uncertainty has extreme and quantifiable effects on investment in new startups. A very detailed look at the uncertainty in the cloud computing space, prior to and after the decision in the Comedy Central v. Cablevision case, which effectively set the framework for the legality of cloud computing, showed much greater investment when the law was clarified to be in favor of letting these new services thrive. Take that away, and investment in this engine of growth likely would be much lower. Considering that politicians claim to be so concerned about the economy and jobs these days, the idea that they would push forth a bill that quantifiably would reduce investment in one of the only sectors creating new jobs is really stunning.

Broadly expanding secondary liability is a dream for trial lawyers, but will be a disaster for business. There's been a move, associated with these bills to somehow demonize important concepts of safe harbors from secondary liability. The suggestion is that secondary liability somehow "allows" bad activity. Nothing is further from the truth. Illegal activity is still illegal. The point of safe harbors from secondary liability is blaming the party actually doing the action that breaks the law. We don't allow people to sue AT&T because the telephone was used in commission of a crime and we don't sue Ford because someone crashed their pickup truck into another car. Liability should be properly applied to the parties doing the action that breaks the law. The safe harbors have just made that clear -- and allowed innovation to flourish. Empirical studies have pointed out that "the rich informational ecosystem we know today... is a function of the 'breathing space' Internet intermediaries currently have under the law."

The key way that both PIPA and SOPA function are to drastically scale back that breathing space, by attaching secondary liability and compliance costs to US companies, in an attempt to keep users from infringing via other sites. That would represent a massive shift in the legal framework that has allowed the internet to flourish, and yet no research or studies have been done to look at the possible impact of all of this.

The technical measures described in both bills is tremendously problematic. Looking to use DNS blocking is just a bad move. It's why a group of core internet infrastructure experts spoke out very early on (about COICA, in the pre-PIPA days) to explain how DNS blocking would set back a decade or more's worth of work on online security standards, would make people less safe online, and has the risk of fragmenting the internet. It's why the founder of the world's largest independent DNS provider, OpenDNS, in charge of protecting one-third of all schools in the US, has noted that under these laws, he likely wouldn't have started the company, or might have started it in another country.

Having a judge determine the best network architecture is a bad idea. SOPA's attempt to address the "DNS blocking doesn't work" argument by adding a vague standard in which courts can order sites to take "reasonable measures" to block even more is also not encouraging. Does anyone really think that we want some judges determining what are "reasonable measures" for managing how the internet works? Wouldn't it be better to trust the long line of experts, drop any thought of DNS blocking, and move on?

Going down the slippery slope of censorship is fraught with peril, both domestically and abroad. Supporters of the law get angry any time people bring up censorship, but as law professor Derek Bambauer has made clear, any effort to block content is a form of censorship. What we can argue is whether or not this form of censorship makes sense or is a policy that people think makes sense. But no one should deny that bills that lead to blocking access to websites is a form of censorship.

There is reasonable debate as to whether or not this level of censorship goes violates the First Amendment. Constitutional scholar Laurence Tribe has argued that it does violate the First Amendment. Well over 100 of the country's top legal scholars have made the same argument. Arguing on the other side is well respected First Amendment lawyer Floyd Abrams... but even he admits that under SOPA and PIPA protected speech would get censored. He just deems that as acceptable collateral damage, as being merely "incidental." We can argue over whether or not it really is incidental, as we've already seen actions against sites under current law that seek to stifle large amounts of protected speech outside of any infringement.

The functional setup of such site blocking -- via DNS blocking -- is effectively identical to how the Great Firewall of China works. While the intended purpose is obviously different, the actual mechanism for blocking is nearly identical. This creates significant cover for repressive regimes to resist any diplomatic efforts by the US to push back against attempts by the US to promote internet freedom. Furthermore, we have seen how countries, such as Russia, have used copyright law to censor political opposition, using the law to go against activists challenging the government. Even if the intended purpose of SOPA and PIPA are to protect against infringement, opening up the door to censorship for one purpose makes it nearly impossible to avoid it being used for other purposes. It also basically gives the perfect blueprint for repressive regimes. They merely need to claim that their Great Firewalls are designed to stomp out infringement, and then can use it to intimidate and block political opponents. Adding to that is the massive expansion of the diplomatic corp. pushing for greater enforcement, and it's almost as if we're begging countries to set up their own Great Firewalls that will certainly be abused.

Countries abroad are watching us, and already noting the seeming hypocrisy concerning our statements. Media in other countries, who already are known for suppressing speech and censoring the internet, are already mocking the US for even considering such legislation at the same time as the US State Department claims to be promoting internet freedom. Talking about the importance of internet freedom on the one hand, while pushing countries to put in place the very tools that will be used to undermine internet freedom is not a particularly consistent message. This can be seen in VP Joe Biden's recent speech on internet freedom that presents all the arguments for why SOPA and PIPA should not be supported (in an unintended manner).

Changing what counts as a felony for copyright, without understanding the implications or common usage of technology puts many at risk. This does not apply directly to PIPA, but its companion legislation in the Senate, S.978. Similar provisions are found in SOPA as well, making certain forms of "streaming" a felony. Supporters of these actions insist that they're merely harmonizing criminal and civil copyright laws, since the felony parts of the criminal copyright statute cover reproduction and distribution, but not performance. What they fail to recognize (or admit) is that there's a reason why performance rights were left out, and it's because it's pretty ridiculous to think of a felony performance in normal contexts. But it becomes even more troublesome in the online context, because "performance" is so vaguely defined in an era when streaming works via a simple one-line embed. To embed a video is no different -- from a technical standpoint -- from linking to a video. And most people would have significant problems with the idea that you could face five years in jail for merely linking to content you have no control over. Yet, the streaming portions of SOPA and of S.978 make that entirely possible. Merely putting a single line of code on a site, pointing to content on another server that you have no control over, potentially makes you a felon. This will have massive unintended consequences and puts at risk millions of Americans who embed videos all the time.

To be honest, there are many, many more problems hidden down within the specifics of the bill, but this post was already getting long enough. However, what we have is a bill that doesn't tackle the real problems at all, that won't solve the problem it thinks it's facing, and has massive unintended consequences. Why? Well, because the entertainment industry insists that it's in trouble. This is the same entertainment industry who has been claiming the same thing about every technological innovation ever. If they'd had their way in the past, there would be no radio, no cable TV, no VCR, no TiVo and no iPods. Do we really trust them now to create a "narrowly focused" law that will only target the really bad behaviors? We'll close it out with a few quotes from the entertainment industry over the last century discussing various technological innovations, and question why we're letting them drive PIPA and SOPA forward:

The Player Piano

“I foresee a marked deterioration in American Music…and a host of other injuries to music in its artistic manifestations by virtue – or rather by vice – of the multiplication of the various music reproducing machines” -- John Philips Sousa, 1906

The Video Cassette Recorder

"But now we are faced with a new and troubling assault on our fiscal security, on our very economic life, and we are facing it from a thing called the Video Cassette Recorder" -- MPAA President Jack Valenti in 1982

Cassette Tapes

"When the manufacturers hand the public a license to record at home...not only will the songwriter tie a noose around his neck, not only will there be no more records to tape, but the innocent public will be made accessory to the destruction of four industries" -- ASCAP, 1982

Digital Audio Tape

The Mp3 Player

“Diamond's product Rio was destined to undermine the creation of a legitimate digital distribution marketplace..." -- RIAA President Hillary Rosen in 1998

The Digital Video Recorder

"It's theft...Any time you skip a commercial or watch the button you're actually stealing the programming." Turner Broadcasting CEO Jaime Kellner in 2002

from the and-now-congress-wants-to-screw-that-up dept

Harvard Business School professor Josh Lerner (who has done fantastic research in the past on problems with the patent system) appears to have turned his attention to copyright law as well. A new report he has put out shows how the Second Circuit appeals court ruling that said Cablevision's cloud-based DVR was legal provided some amount of certainty in questions concerning copyright law in the cloud, and that resulted in increased venture capital investment in related cloud offerings (pdf) to the tune of between $728 million to $1.3 billion.

Obviously, at first pass, there are questions about the level of causality here, as opposed to just correlation (or just the general development of the cloud market). However, Lerner tries to control for a variety of external variables in attempting to figure out the direct impact here. And, obviously, you can never tease out all the different factors, but he makes a pretty compelling case that this particular ruling had a massive impact in venture capitalists' willingness to invest in the space -- and further cites additional research that shows a pretty clear direct causal relationship between VC investment and innovation and job creation. He further controls for things like broadband penetration, which could also impact these numbers.

The main key here was comparing investments in the cloud space in the US vs. Europe over the same period, because the US had the legal clarification, while Europe did not. Basically, in the US, after the Cablevision ruling, investments in cloud computing rose by 41%. In Europe, it rose 27%. Obviously, much of that increase is just due to the rise of the space, but the greater increase in the US suggests that the ruling really had an impact -- and that impact is pretty massive in terms of investment, and from that innovation and jobs. From there, Lerner does a lot of additional statistical analysis to separate out the direct impact of the Cablevision ruling compared to many other possible factors, and shows a pretty significant impact from the ruling. There's a lot more in the report, with details of the statistical analysis used for those who want to dig into the specifics, which looks pretty rigorous from my standpoint (though, I haven't done hard core stats in about a decade, but at one point in the past I taught stats in college). Either way, Lerner clearly approached the question from a variety of different angles, and they all seemed to suggest similar results, which is pretty compelling.

The key conclusion:

Our findings suggest that decisions around copyright scope can have significant impacts on
investment and innovation. We have tested a number of models and consistently find that the
U.S. Second Circuit Court of Appeals’ decision led to additional incremental investment in U.S.
cloud computing companies compared to the EU experience. As shown in the figure in Appendix
B, estimates of increased VC investment in U.S. cloud computing from our seven models range
from $728 million to approximately $1.3 billion, with an average of $936 million. When paired
with the findings of the enhanced effects of VC investment relative to corporate investment, this
may be the equivalent of $2 to $5 billion in traditional R&D investment.

This is quite important to think about in the context of SOPA/PIPA, where Hollywood and the US Chamber of Commerce are seeking to massively change the legal framework around cloud computing (effectively killing the Cablevision ruling and much, much more). The clear fear here should be that doing so will massively chill innovation, job creation and investment. This is why top venture capitalists are so worried about SOPA/PIPA. It'll seriously chill investment in a key area of the innovation ecosystem. Even worse, this is the part of the industry that's actually helping the entertainment industry move into the 21st century.

from the why-do-they-bother? dept

As a search through the Techdirt archives shows, Phorm's behavioral advertising service based on watching your Web activity was beset by problems in its early days. One of the last Techdirt posts on the company from a couple of years ago explained how Phorm was planning to expand overseas, and here's some news on how that's been going:

Despite Phorm softening the service in response to privacy concerns, three UK ISPs who trialled it decided not to go deploy it. Phorm moved operations to South Korea but the same happened. So it moved to Brazil.

Now operating on an opt-in basis, Phorm has finally gained actual commercial roll-out with Brazilian ISPs Oi and Telefonica and with Romania’s Romtelecom. With them, Phorm says opt-in rates have met or exceeded targets, advertiser prices have been “significantly higher than forecast” while publisher costs have met or undermet targets.

With this record, Phorm could certainly use with a few more big new markets; its financial results so far have been dismal:

The company had never recorded any revenue until the first half of this year, just $17,336. (£10902.53) In 2010, Phorm lost $28.6 (£17.99) million.

Despite that track record, it is predicting big things:

"The potential scale ... of the Brazilian business could be £7.03 ($11.13) million... The (value) of Romania could be £78 ($124.03) million," Phorm itself forecasts modestly to investors. These targets are based on Phorm scaling up from small, post-trial deployment to large-scale adoption.

It also has high hopes elsewhere:

Phorm says discussions with other global ISPs have also continued for the last three years. It plans to roll out in China and a southern Europe country early in 2012. It also says it is due to deploy in a southern Europe country it values at £483 ($768.01) million and a south-east Asian country it values at £82 ($130.39) million early next year.

Those are rather a jump from this year's six-month sales of $17,336. Undeterred by that fact, investors still seem to be piling in:

This time, it is raising £30 ($47.7) million, which will be used partly to repay a £16 ($25.44) million convertible-notes loan it took out this March and partly “to provide sufficient working capital to get to positive operational cash flow”. It is planning a cash burn of £1.1 ($1.75) million per month for the next year.

At this point, you could be forgiven for having lost track of how much money Phorm has raised and how much equity it has given out to finance its ongoing hefty losses. But paidContent has previously reported Phorm took a total £53 ($84.28) million between 2005 and 2010. The recent loan and latest funding bring that total to nearly £100 ($159.01) million.

That's pretty incredible: nearly $160 million for a service that has yet to prove itself in any large-scale deployment. There's something very strange about this persistent belief by investors that what the world is really waiting for is a service that watches your every move online to serve up targeted ads and content.

from the the-broken-system dept

We've been covering for a while entertainer Kevin Smith's business model experiments, which rely heavily on his wonderful ability to connect with fans. We've also been fascinated with his more recent decisions to buck "the old way" of doing things and to focus on marketing his latest film, Red State, in a way that he thought made more sense. So far, that's meant a very cool (and quite profitable) plan for Smith to tour with Red State and to combine his usual (wonderful) Q&A sessions with showings of the film. Another part of the plan is getting the film out there in as convenient a way as possible, meaning a video on demand release before the wider theatrical release.

One of the key points of this plan was that he wasn't going to fall into the trap of wasting money on advertising. So far, everything that he's done has been built off of word of mouth -- in large part from his Twitter feed and his growing network of podcasts (I used to listen to nearly all of them, but can't keep up any more). And it's worked out great. Crowds continue to flock to see him, and the movie is getting plenty of buzz among the folks its targeted at. However, he's finally made an exception to the "no advertising" rule, though he's somewhat annoyed that he had to do this. If you've heard him speak about Red State, you've heard him talk about a few of the top notch performances that came out of the film, and Smith and some others think that perhaps some of those performances are "Oscar-worthy." But... the Motion Picture Academy is not known for changing with the times or being willing to adapt to the way films are watched these days. So it "requires" certain things to happen to have a movie "qualify" for the Academy Awards, and that apparently includes a week's worth of screenings at a "real" theater... and newspaper advertising. Why? Who the hell knows. Just don't question the Academy.

Per the AMPAS rules that govern the qualification for the Oscars, paid ads needed to run in conjunction with a seven day, official theatrical engagement. This was a bitter pill to swallow, as we’ve sold lots of Red State tickets all year long without running a single paid ad. But a rule’s a rule, so after the AMPAS folks signed off on the New Beverly for the home of our Los Angeles run, we spent $9,316 on newspaper ads.

It still makes me queasy – solely because it’s money not well-spent. We’d sold out all of our weekend screenings before the ad ever ran in either of the three papers we bought space in: the LA Weekly (six inch ad), the LA Times (same), and the west coast edition of the NY Times (1/2 page ad).

Comparing the take on various live showings that he's been doing, Smith notes that two shows he did last week in Texas basically "covered" the cost of the ads, which seems pretty silly. You're supposed to be advertising to make more money, not making money to pay for the ads you don't want. But such is the legacy structure of the movie industry these days.

Separately, we greatly appreciate the fact that Smith is willing to be so open about the financial results, which helps give more people the details needed to understand how these industries work. It's so rare that people doing these kinds of experiments are willing to reveal any numbers, so it's refreshing to see him being so open. The only thing that would be even better is if he could also open up about some of the costs, so we can get a better idea of the net results, rather than just the gross. Obviously, the theater takes a cut of some of this stuff, and that would be useful for others contemplating following in his footsteps. But, still it's great to see this kind of openness:

we ran the flick for a week at Quentin Tarantino’s New Beverly Cinema in Los Angeles (big thanks to Julia!), where we did two screenings a night, which I followed with 30 minute Q&A’s. Tickets were $20 for the Friday to Wednesday screenings and were followed by post-show Q&A’s with Fatty McNoFly, scourge of the skies.

Since few movie sites ever wanna include us in their box office wrap-up pieces (nor mention that we had the highest per screen average for the last two weeks), here’s the financials for how Red State performed that week…

On Thursday, I didn’t Q&A after the screenings at all, as per AMPAS rules (regarding leaving filmmaker-free screenings open for Academy members so they can watch the flick without influence). Thursday’s ticket price was only $7 for the movie only ($7 is the normal New Beverly admission price, although usually that’s for a non-first-run double-feature). Even that did solid numbers…

Of the 2,675 seats available from Friday to Wednesday, we sold 2,580. From Friday to Wednesday, over the course of twelve screenings, merely 95 seats ever sat empty. Had our start time been 7:30 each night, we likely would’ve sold those seats as well (it’s a bitch getting anybody out in L.A., let alone at 6:30 at night; folks are still getting home from work).

Ah, but isn't the movie industry dying? That's what the MPAA keeps telling us. And yet, if you connect with fans and give them a real reason to buy, it seems they don't mind buying... Shocking, I know...